DOCSLIB.ORG

Self-Defense to Cyber Force: Combatting the Notion of ‘Scale and Effect'

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Self-Defense to Cyber Force: Combatting the Notion of ‘Scale and Effect' American University International Law Review Volume 36 Issue 4 Article 1 2021 Self-Defense to Cyber Force: Combatting the Notion of ‘Scale And Effect' Thomas Eaton Follow this and additional works at: https://digitalcommons.wcl.american.edu/auilr Part of the Internet Law Commons Recommended Citation Eaton, Thomas (2021) "Self-Defense to Cyber Force: Combatting the Notion of ‘Scale And Effect'," American University International Law Review: Vol. 36 : Iss. 4 , Article 1. Available at: https://digitalcommons.wcl.american.edu/auilr/vol36/iss4/1 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. SELF-DEFENSE TO CYBER FORCE: COMBATTING THE NOTION OF ‘SCALE AND EFFECT’ THOMAS EATON* I. INTRODUCTION.............................................................697 II. WHY THIS QUESTION IS IMPORTANT......................702 III. STARTING WITH THE TEXT........................................704 IV. CHARTER-IS-DEAD SCHOOL ......................................706 V. SCALE AND EFFECTS SCHOOL ..................................710 VI. PROBLEMS WITH SCALE AND EFFECTS SCHOOL.715 A. PREDICTIVE PROBLEMS..................................................717 B. DESCRIPTIVE PROBLEMS................................................719 i. Problems with Scale and Effects, as conceived........720 ii. Problems with Scale and Effects, as applied...........727 VII. HOW TO BETTER THINK ABOUT SCALE AND EFFECTS OF CYBER OPERATIONS. ...........................730 VIII. PRESCRIPTIVE PROBLEMS....................................742 IX. FORCEFUL COUNTERMEASURES SCHOOL ............745 X. NO GAP SCHOOL ...........................................................754 XI. CONCLUSION .................................................................768 I. INTRODUCTION In early December, it was announced that United States (U.S.) companies SolarWind and FireEye were the victims of a widespread * The author is a Judge Advocate in the United States Navy. The views expressed in this writing are the author’s alone and do not represent the views of the Department of the Navy or the United States Government. The author would like to thank Breawna Power Eaton, for reading numerous drafts, providing excellent feedback, and always being his best editor—both professionally and personally. The author would also like to thank the Editorial Staff at the American University International Law Review for vastly improving this writing, and importantly the faculty of The Fletcher School, particularly, Professors Tom Dannenbaum and Michael Glennon. 697 698 AM. U. INT’L L. REV. [36:4 and pervasive cyber-attack that possibly affected tens of thousands of government computers. “[T]he magnitude of this ongoing attack is hard to overstate.”1 While the attack remains under investigation at the time of this writing, “[e]vidence in the SolarWinds attack points to the Russian intelligence agency known as the S.V.R., whose tradecraft is among the most advanced in the world.”2 What will happen next, with regard to both how the U.S. will respond and what they can and will do to prevent future attacks, remains uncertain. A major reason for this uncertainty is that the entire spectrum of cyber warfare challenges the paradigm of how “war” has been traditionally defined. The right to self-defense is present in almost all legal systems, both between persons and between states. Between nations, the debate over what level of force justifies a lawful use of force in response, purportedly laid out in the United Nations Charter, began even before the Charter was signed. Defining force in the cyber domain poses new challenges, yet this unique, quickly evolving facet of warfare has simply been pasted on top of the older, unresolved debate. It would be overly ambitious to attempt to resolve fundamental, long-debated disagreements about how to read the language of Arts. 2(4) and 51. However, the analysis applied by the majority view – looking at the “scale and effect” of cyber operations, as in Tallinn Manual 2.0 – is unrealistic, unworkable, and undesirable. The challenge of defining force in the cyber domain remains; however, descriptively, predictively, and proscriptively, states are justified in responding to any force with counterforce in self-defense, proportionality acts as the throttle to self-defense, rather than the unreasonably high standard of “scale and effect.” The ability to reach out, with a few keystrokes or a couple lines of code, through the interconnected world of cyberspace and create militarily advantageous effects 10,000 miles away has changed warfare as previously conceived, perhaps more than any other 1. Thomas P. Bossert, Opinion, I Was the Homeland Security Adviser to Trump. We’re Being Hacked, N.Y. TIMES (Dec. 16, 2020), https://www.nytimes.com/2020/12/16/opinion/fireeye-solarwinds-russia- hack.html. 2. Id. 2021] SELF-DEFENSE TO CYBER FORCE 699 advancement in any other domain of war. Cyber weapons are weapons, and whatever law applies to conventional weapons equally applies to cyber weapons.3 Long before cyber operations were even science fiction, there was much debate over what constituted a use of force that would justify force in response. In many ways, the debate over what constitutes cyber-attacks has been pasted on top of that older debate, but the unique form of harm that cyber-attacks cause adds novel questions to these older debates. Lacking a physical instrument, yet possessing the potential to cause greater harm, cyber-attacks seem simultaneously less and more “forceful.” How one views that dichotomy, coupled with how they generally view the Charter regarding conventional force, has led to varying answers to the salient question: what is the threshold of cyber force required to justify the use of counterforce in self-defense? When something breaks on the receiving end of a cyber-attack— when people die, when fires erupt, when opened dams destroy villages—few seem to disagree4 the act would be a “use of force,” likely rising to the level of an “armed attack” that would justify lawful force in “self-dense” in response, regardless how one regards the text of Article 51 of the United Nations (UN) Charter.5 The far more complicated question is: what happens when nothing “physical” breaks? When only data is destroyed, when government email stops working, when banking systems fail, when stock markets crash, but no one is injured, no property is destroyed? A cyber-attack is not “a monolithic technique . there are many methods by which computer networks have been, or could be, attacked.”6 Each attack must be analyzed individually. However, the most widely accepted view, as advanced in the Tallinn Manual 2.0, 3. See Daniel B. Silver, Computer Network Attack as a Use of Force under Article 2(4) of the United Nations Charter, 76 INT’L L. STUD. SERIES U.S. NAVAL WAR COLL. 73, 76 (2002) (noting that using a weapon to target a computer raises the same questions under international law as would the targeting of any other piece of equipment). 4. See TALLINN MANUAL 2.0 ON THE INTERNATIONAL LAW APPLICABLE TO CYBER OPERATIONS 341 (Michael N. Schmitt ed., 2nd ed. 2017) [hereinafter TALLINN MANUAL 2.0]. 5. See U.N. Charter arts. 2, ¶ 4, 51. 6. Silver, supra note 3, at 76 (proceeding to discuss various means of cyber- attacks). 700 AM. U. INT’L L. REV. [36:4 looks to the “scale and effects”7 test adopted from the International Court of Justice’s (ICJ) judgment in the Military and Paramilitary Activities in and Against Nicaragua 8 This classic analysis is reasonable at first glance, if one accepts a textual reading of the UN Charter, even with limited modification based on subsequent state practice and judicial decisions, as did the authors of the Manual (the self-proclaimed International Group of Experts (IGEs)).9 Others have argued that state practice has irretrievably broken the language of the Charter, asserting that even engaging in a discussion over how to interpret the terms “armed attack” in differentiation of “use of force” is meaningless—states will do what states do.10 Various framings and weights given to the varying sources of authority of how to interpret the language of the Charter, subsequent state practice, and judicial decisions place the starting point of this analysis in vastly different locations. Sean Murphy offers “Four Schools of Thought” on how to interpret the UN Charter on the question of preemptive self-defense.11 His Schools on that question are: “‘The Strict-Constructionist School,’ ‘The Imminent Threat School,’ ‘The Qualitative Threat,’ and ‘The ‘Charter-Is-Dead’ School.’”12 7. See TALLINN MANUAL 2.0, supra note 4, at 330–31 (referring to “scale and effects” as “a shorthand term that captures the quantitative and qualitative factors to be analyzed in determining whether a cyber operation amounts to the use of force”). 8. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, ¶ 195 (June 27). 9. See TALLINN MANUAL 2.0, supra note 4. 10. See, e.g., Michael J. Glennon, What’s Law Got to Do with It?, 26 WILSON Q. 70, 75 (2002) (arguing that states act alone when acting multilaterally is not in their best interest); Thomas M. Franck, Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States, 64 AM. J. INT’L. L. 809, 809 (1970) (acknowledging that historically, states have sometimes “succumbed to the temptation to settle a score, to end a dispute or to pursue their national interest through the use of force”). But see W. Michael Reisman, Thomas Franck and the Use of Force, 104 AM. SOC’Y INT’L L. PROC. 403, 406 (2010) (highlighting the United Nations’ major contribution of prohibiting war as individual state policy, instead replacing it with a collective security system). 11.
Load more

Recommended publications
  • The Case of Iran's Nuclear Program
    Penn State Journal of Law & International Affairs Volume 2 Issue 2 November 2013 The Prohibition on the Use of Force for Arms Control: The Case of Iran’s Nuclear Program Mary Ellen O'Connell University of Notre Dame Law School Reyam El Molla Follow this and additional works at: https://elibrary.law.psu.edu/jlia Part of the Diplomatic History Commons, History of Science, Technology, and Medicine Commons, International and Area Studies Commons, International Law Commons, International Trade Law Commons, Law and Politics Commons, Political Science Commons, Public Affairs, Public Policy and Public Administration Commons, Rule of Law Commons, Social History Commons, and the Transnational Law Commons ISSN: 2168-7951 Custom Citation The Prohibition on the Use of Force for Arms Control: The Case of Iran’s Nuclear Program, 2 Penn. St. J.L. & Int’l Aff. 315 (2013). The Penn State Journal of Law & International Affairs is a joint publication of Penn State’s School of Law and School of International Affairs. Penn State Journal of Law & International Affairs 2013 VOLUME 2 NO. 2 THE PROHIBITION ON THE USE OF FORCE FOR ARMS CONTROL: THE CASE OF IRAN’S NUCLEAR PROGRAM Mary Ellen O’Connell and Reyam El Molla* In many discussions of Iran’s nuclear program, there seems to be an implicit assumption that states have a right to use military force to end the program. For example, the Institute for National Security Studies,1 an Israeli think tank, in an article titled, The Legality of an Attack against Iranian Nuclear Facilities, places emphasis on proving the necessity of an attack as a last resort but fails to indicate any accepted legal basis for resort to military force as an initial matter.2 In fact, international law does not permit the use of military force without United Nations Security Council authorization for arms control of any kind, whether to end a nuclear program, to end a chemical weapons program, or to prevent missile shipments.
    [Show full text]
  • The OIL PLATFORMS Case and the Use of Force in International Law I
    Singapore Journal of International & Comparative Law (2003) 7 pp 579–588 The OIL PLATFORMS Case and the Use of Force in International Law ∗ Caroline E. Foster I. Introduction This brief article reports on the decision of the International Court of Justice on 6 November 2003 in the Case Concerning Oil Platforms (Islamic Republic of Iran v United States).1 The Oil Platforms dispute related to events that took place in the Iran-Iraq war from 1980 to 1988. In the time that it has taken for proceedings to reach the stage where judgment on the merits of the case could be delivered, there has been high-profile United States (US) and US-led activity in Asia and the Middle East. This note does not set out to establish a legal case either against or in defence of US action in Afghanistan or Iraq. At the same time, the judgment in Oil Platforms does draw attention to the continued operation of international law and international judicial machinery in relation to the body of law most directly at issue at least in relation to the US invasion of Afghanistan: international law on the use of force in self-defence.2 The prohibition on the use of force under international law is found both in customary international law and in the UN Charter (Article 2(4)), but under neither does this prohibition extend to a use of force in a State’s exercise of the right of self-defence. The estab- lished criteria for the exercise of the right of self-defence include requirements that the force used must be necessary to repel the armed attack and must be proportionate to this need.
    [Show full text]
  • The South China Sea and the Persian Gulf
    Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito (RECHTD) 12(2):239-262, maio-agosto 2020 Unisinos - doi: 10.4013/rechtd.2020.122.05 A New Maritime Security Architecture for the 21st Century Maritime Silk Road: The South China Sea and the Persian Gulf Uma nova arquitetura de segurança marítima para a Rota da Seda Marítima do Século XXI: o Mar do Sul da China e o Golfo Pérsico Mohammad Ali Zohourian1 Xiamen University (China) [email protected] Resumo China e Irã possuem o antigo portão da Rota Marítima da Seda, além de duas novas vias nessa mesma rota, a saber, o Estreito de Ormuz e o Estreito de Malaca. Ao contrário do Estreito de Ormuz, a segurança marítima no Estreito de Malaca precisa ser redesenhada e restabelecida pelos Estados do litoral para o corredor de segurança. O objetivo deste estudo é descobrir o novo conceito e classificação de segurança marítima, notadamente os elementos de insegurança direta e indireta. Este estudo ilustra que os elementos diretos e indiretos mais notáveis são, respectivamente, pirataria, assalto à mão armada e presença de um Estado externo. Reconhece-se que a presença contínua e perigosa de um Estado externo é um elemento indireto de insegurança. À luz das atividades de violação e desestabilização por parte dos EUA no Golfo Pérsico e no Mar da China Meridional, sua presença e passagem são consideradas atividades não-inocentes, pois são prejudiciais à boa ordem, paz e segurança dos Estados localizados ao longo da costa. Portanto, uma nova proposta chamada Doutrina do “No Sheriff" é oferecida neste artigo para possivelmente impedir a formação de hegemonias em todas as regiões no futuro.
    [Show full text]
  • Ship Covers Relating to the Iran/Iraq Tanker War
    THE IRAN/IRAQ TANKER WAR AND RENAMED TANKERS ~ Lawrence Brennan, (US Navy Ret.) SHIP COVERS RELATING TO THE IRAN/IRAQ TANKER WAR & REFLAGGED KUWAITI TANKERS, 1987-881 “The Kuwaiti fleet reads like a road map of southern New Jersey” By Captain Lawrence B. Brennan, U.S. Navy Retired2 Thirty years ago there was a New Jersey connection to the long-lasting Iran-Iraq War. That eight years of conflict was one of the longest international two-state wars of the 20th century, beginning in September 1980 and effectively concluding in a truce in August 1988. The primary and bloody land war between Iran and Iraq began during the Iranian Hostage Crisis. The Shah had left Iran and that year the USSR invaded Afghanistan. The conflict expanded to sea and involved many neutral nations whose shipping came under attack by the combatants. The parties’ intent was to damage their opponents’ oil exports and revenues and decrease world supplies. Some suggested that Iran and Iraq wanted to draw other states into the conflict. An Iranian source explained the origin of the conflict at sea. The tanker war seemed likely to precipitate a major international incident for two reasons. First, some 70 percent of Japanese, 50 percent of West European, and 7 percent of American oil imports came from the Persian Gulf in the early 1980s. Second, the assault on tankers involved neutral shipping as well as ships of the belligerent states.3 The relatively obscure first phase began in 1981, and the well-publicized second phase began in 1984. New Jersey, half a world away from the Persian (Arabian) gulf, became involved when the United States agreed to escort Kuwait tankers in an effort to support a friendly nation and keep the international waters open.
    [Show full text]
  • U.S.-Iran Tensions and Implications for U.S. Policy
    U.S.-Iran Tensions and Implications for U.S. Policy Updated July 29, 2019 Congressional Research Service https://crsreports.congress.gov R45795 SUMMARY R45795 U.S.-Iran Tensions and Implications for July 29, 2019 U.S. Policy Kenneth Katzman Since May 2019, U.S.-Iran tensions have escalated. The Trump Administration, following its Specialist in Middle 2018 withdrawal from the 2015 multilateral nuclear agreement with Iran (Joint Comprehensive Eastern Affairs Plan of Action, JCPOA), has taken several steps in its campaign of applying “maximum pressure” on Iran. Iran and Iran-linked forces have targeted commercial ships and infrastructure Kathleen J. McInnis in U.S. partner countries. U.S. officials have stated that Iran-linked threats to U.S. forces and Specialist in International interests, and attacks on several commercial ships in May and June 2019, have prompted the Security Administration to send additional military assets to the region to deter future Iranian actions. However, Iran’s downing of a U.S. unmanned aerial aircraft might indicate that Iran has not been deterred, to date. Clayton Thomas Analyst in Middle Eastern President Donald Trump has said he prefers a diplomatic solution over moving toward military Affairs confrontation, including a revised JCPOA that encompasses not only nuclear issues but also broader U.S. concerns about Iran’s support for regional armed factions. During May-June 2019, the Administration has placed further pressure on Iran’s economy. By expanding U.S. sanctions against Iran, including sanctioning its mineral and petrochemical exports, and Supreme Leader Ali Khamene’i. Iranian leaders have refused to talk directly with the Administration, and Iran has begun to exceed some nuclear limitations stipulated in the JCPOA.
    [Show full text]
  • U.S.-Iran Tensions and Implications for U.S. Policy
    U.S.-Iran Tensions and Implications for U.S. Policy Kenneth Katzman Specialist in Middle Eastern Affairs Kathleen J. McInnis Specialist in International Security Clayton Thomas Analyst in Middle Eastern Affairs July 1, 2019 Congressional Research Service 7-.... www.crs.gov R45795 SUMMARY R45795 U.S.-Iran Tensions and Implications for U.S. July 1, 2019 Policy Kenneth Katzman Specialist in Middle Eastern Affairs In the spring of 2019, U.S.-Iran tensions have escalated. The Trump Administration, [email protected] following its 2018 withdrawal from the 2015 multilateral nuclear agreement with Iran Kathleen J. McInnis (Joint Comprehensive Plan of Action, JCPOA), has taken several steps in its campaign Specialist in International of applying “maximum pressure” on Iran. Iran or Iran-linked forces have targeted Security commercial ships and infrastructure in U.S. partner countries. [email protected] U.S. officials have stated that Iran-linked threats to U.S. forces and interests, and attacks Clayton Thomas on several commercial ships in May and June 2019, have prompted the Administration Analyst in Middle Eastern Affairs to send additional military assets to the region to deter future Iranian actions. President [email protected] Donald Trump, while warning Iran not to take action against the United States, has said he prefers a diplomatic solution over moving toward military confrontation. The For a copy of the full report, Administration has expanded U.S. sanctions against Iran, including sanctioning its please call 7-.... or visit mineral and petrochemical exports during May-June 2019, placing further pressure on www.crs.gov. Iran’s economy.
    [Show full text]
  • Aerial Incident of 3 July 1988 Affaire De L'incident Aerien
    INTERNATIONAL COURT OF JUSTICE PLEADINGS, ORAL ARGUMENTS, DOCUMENTS CASE CONCERNING THE AERIAL INCIDENT OF 3 JULY 1988 (ISLAMIC REPUBLIC OF IRAN v.. UNITED STATES OF AMERICA) VOLUME II COUR INTERNATIONALE DE JUSTICE MEMOIRES, PLAIDOIRIES ET DOCUMENTS AFFAIRE DE L'INCIDENT AERIEN DU 3 JUILLET 1988 (RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS D'AMERIQUE) VOLUME II The case conceming the Aerial Incident of 3 July 1988 (Islamic Republic of Iran V. United States of America), entered on the Court's General List on 17 May 1989 under Number 79, was removed from the List by an Order of the Court of 22 February 1996, following discontinuance by agreement of the Par- ties (Aerial Incident of 3 July 1988 (Islamic Republic of Iran V. United States of America), 1. Cl Reports 1996, p. 9). The pleadings in the case are being published in the following order: Volume 1. Application instituting proceedings of the Islamic Republic of Iran; Memorial of the Islamic Republic of Iran. Volume II. Preliminary objections of the United States of America; Observa- tions and submissions of the Islamic Republic of Iran on the preliminary objections; Observations of the International Civil Aviation Organization; selection of correspondence; SettIement Agreement. Regarding the reproduction of case files, the Court has decided that hence- forth, irrespective of the stage at which a case has terminated, publication should be confined to the wntten proceedings and oral arguments in the case, together with those documents, annexes and correspondence considered essential to illus- trate its decision. The Court has also specifically requested that, whenever tech- nical1y feasible, the volumes should consist of facsimile versions of the docu- ments submitted to it, in the form in which they were produced by the parties.
    [Show full text]
  • Policy Notes April 2021
    THE WASHINGTON INSTITUTE FOR NEAR EAST POLICY APRIL 2021 POLICY NOTES NO. 103 Deterring Iran in the Gray Zone: Insights from Four Decades of Conflict Michael Eisenstadt resident Joe Biden has stated that if Iran returns to full compliance with the 2015 nuclear accord, known as the Joint Comprehensive Plan of Action (JCPOA), the United States will too, as a starting point for P 1 follow-on talks about Iran’s missile program and regional activities. The path to a stronger, longer, and broader JCPOA, however, may be tortuous and prolonged; success is not foreordained. Indeed, since the Biden administration took office, Tehran has already resumed proxy attacks on U.S. intrests in Image: The Japanese-owned Iraq, and has accelerated work on its nuclear program while limiting access tanker Kokuka Courageous, by international inspectors, in order to (1) build leverage, (2) roll back U.S. showing damage from an sanctions, and (3) obtain other concessions. Washington needs to be able to Iranian limpet mine attack in the Gulf of Oman, June 2019. deter or counter such moves and deny Tehran advantage in ways that do not Screenshot: U.S. Central hinder renewed diplomacy. Moreover, even if talks succeed, U.S.-Iran ties will Command. MICHAEL EISENSTADT DETERRING IRAN IN THE GRAY ZONE likely remain tense for years to come. Deterrence engendered by more effectively deterring and will therefore remain a core component of U.S. policy countering Tehran’s regional activities may enhance toward Iran as a way to manage tensions, avoid Washington’s ability to deter a potential future escalation, and deny Tehran leverage, thus creating nuclear breakout by Iran.
    [Show full text]
  • Islamic Republic of Iran V United States of America)*
    CASE NOTES CASE CONCERNING OIL PLATFORMS (ISLAMIC REPUBLIC OF IRAN V UNITED STATES OF AMERICA)* DID THE ICJ MISS THE BOAT ON THE LAW ON THE USE OF FORCE? Case Note — Oil Platforms CONTENTS I Introduction II Facts and Earlier Proceedings III The Judgment on the Merits A Iran’s Claim B The US Counterclaim IV Comment A The Law on the Use of Force B The Meaning of ‘Freedom of Commerce’ C Judicial Methodology V Concluding Remarks I INTRODUCTION On 6 November 2003 the International Court of Justice delivered its judgment on the merits in the Case concerning Oil Platforms (Islamic Republic of Iran v United States of America).1 The decision, handed down more than 10 years after Iran initiated proceedings, brought to a close a series of disputes between Iran and the US.2 Arising out of the US attacks on Iranian oil platforms in the Persian Gulf during the 1980–88 Iran–Iraq war, this unusual case came before the ICJ as a question of alleged breaches of a ‘freedom of commerce’ provision in a bilateral trade agreement between the US and Iran, rather than as a dispute over the use of force under general international law.3 However, it did offer the Court an opportunity to comment on the law of self-defence at a time when the Charter of the United Nations framework on the use of force was under significant * Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [6 November 2003] ICJ <http://www.icj-cij.org> at 1 May 2004.
    [Show full text]
  • Self-Defense": What Is the Proper Role of the International Court of Justice in Use of Force Cases?
    When Naked Came the Doctrine of "Self-Defense": What Is the Proper Role of the International Court of Justice in Use of Force Cases? Harvey Rishikoft I. INTRODUCTION In the unique novel set in South Florida, Naked Came the Manatee, thirteen talented authors created a "literary game of telephone" whereby each wrote a chapter and then passed it on to the next contributor, who did his best to craft a plot line.' The result was a novel of "wildly fluctuating styles and more crazy plot curves than a daytime drama, but thanks to these ... masters of the craft, this roller coaster of a book is almost as much fun to read as it obviously was to write." 2 After reading the recent opinions of the fifteen judges from the International Court of Justice in the Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America),3 one cannot help but believe the Court has just issued its legal version of "Naked Came the Doctrine of Self-Defense." The masters of the craft of legal writing have combined fluctuating legal styles, jurisprudential plot turns, and creative avoidances with tortured analysis to produce a roller coaster of an opinion t Visiting Professor, National War College, Washington, D.C., 2002-2003; Professor of Law, Roger Williams University School of Law. I would like to give special thanks to Trudi Rishikof for her assistance, David P. Auerswald, Kevin Keith, Robert Louis, Michael Mazarr, and Theresa Saboinis-Helf for their help and comments, and Patrick Bratton for his research and comments. I would like to especially thank Professor Harvey M.
    [Show full text]
  • Better Lucky Than Good Operation Earnest Will As Gunboat Diplomacy
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Calhoun, Institutional Archive of the Naval Postgraduate School Calhoun: The NPS Institutional Archive Theses and Dissertations Thesis Collection 2007-06 Better lucky than good operation earnest will as gunboat diplomacy Kelley, Stephen Andrew Monterey, California. Naval Postgraduate School http://hdl.handle.net/10945/3463 NAVAL POSTGRADUATE SCHOOL MONTEREY, CALIFORNIA THESIS BETTER LUCKY THAN GOOD: OPERATION EARNEST WILL AS GUNBOAT DIPLOMACY by Stephen Andrew Kelley June 2007 Thesis Co-Advisors: Daniel J. Moran James A. Russell Approved for public release; distribution is unlimited THIS PAGE INTENTIONALLY LEFT BLANK REPORT DOCUMENTATION PAGE Form Approved OMB No. 0704-0188 Public reporting burden for this collection of information is estimated to average 1 hour per response, including the time for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Washington headquarters Services, Directorate for Information Operations and Reports, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302, and to the Office of Management and Budget, Paperwork Reduction Project (0704-0188) Washington DC 20503. 1. AGENCY USE ONLY (Leave blank) 2. REPORT DATE 3. REPORT TYPE AND DATES COVERED June 2007 Master’s Thesis 4. TITLE AND SUBTITLE: Better Lucky Than Good: Operation Earnest Will as 5. FUNDING NUMBERS Gunboat Diplomacy 6. AUTHOR(S): Stephen Andrew Kelley 7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES) 8.
    [Show full text]
  • The Tanker War and the Law of Armed Conflict (Loac)
    Chapter V THE TANKER WAR AND THE LAW OF ARMED CONFLICT (LOAC) he 1980-88 Tanker War nearly ran the gamut of issues related to the law of T armed conflict (LOAC), or the law ofwar (LOW) and its component, the law of naval warfare (LONW). The general law of maritime neutrality, general issues of necessity and proportionality, and issues of specific concern-visit and search including operations against convoyed, escorted or accompanied neutral mer­ chant ships; commerce ofbelligerents including belligerents' convoys and contra­ band; acquisition of enemy character; blockade, maritime exclusion and other zones and other uses of the ocean for warfare; capture of neutral vessels; humani­ tarian law and belligerents' personnel interned by neutral governments; targeting of ships and aircraft including convoys; conventional weapons; mine warfare; treatment of noncombatants, e.g., merchant seamen; deception (ruses ofwar) dur­ ing armed conflict-all figured during the Tanker War. These are the subjects of this Chapter as they applied to belligerents and neutrals during the war. Chapter III analyzed UN Charter law with particular reference to the law of self-defense and its relationship to the law ofneutrality, the law oftreaties, custom­ ary law, andjus cogens-based norms, and the general principles ofneutrality as they apply to war at sea, and to conduct between neutrals and belligerents. This Chapter will not repeat that analysis, except as it interfaces with the LOAC in situations in­ volving neutrals, e.g., mine warfare, discussed in sub-Part G.2. Chapter IV analyzed the law of the sea, and those principles will not be repeated in here, except as LOS concepts, e.g., due regard for others' uses of the sea, 1 apply by analogy in the LOAC.
    [Show full text]